Opinion
No. 107,669.
2013-02-1
Roy ROBERTSON, Scott Bollin, and Timothy Stoughton, Appellants, v. BAYER CROPSCIENCE AG, Appellee.
Appeal from Johnson District Court; James F. Vano, Judge. Bruce Keplinger and John Hicks, of Norris & Keplinger, L.L.C., of Overland Park, and James Frickleton and Edward D. Robertson III, of Bartimus, Frickleton, Robertson & Gorny, P.C., of Leawood, for appellants. Anthony Martinez and David R. Erickson, of Shook, Hardy & Bacon L . L.P., of Kansas City, Missouri, for appellee.
Appeal from Johnson District Court; James F. Vano, Judge.
Bruce Keplinger and John Hicks, of Norris & Keplinger, L.L.C., of Overland Park, and James Frickleton and Edward D. Robertson III, of Bartimus, Frickleton, Robertson & Gorny, P.C., of Leawood, for appellants. Anthony Martinez and David R. Erickson, of Shook, Hardy & Bacon L . L.P., of Kansas City, Missouri, for appellee.
Before ARNOLD–BURGER, P.J., McANANY and LEBEN, JJ.
MEMORANDUM OPINION
McANANY, J.
Roy Robertson, Scott Bollin, and Timothy Stoughton (“the plaintiffs”) developed thyroid cancer after being exposed to a fungicide they were working with as a part of their jobs at Bayer CropScience LP's facility in Stilwell. They sued their employer, Bayer CropScience LP, under various tort theories. They also sued Bayer CropScience AG, a German corporation. (We will, from time to time, refer to Bayer CropScience LP as “LP” and Bayer CropScience AG as “AG.”)
AG had contracted for LP to do testing on fluopyram, a fungicide developed by AG, in order to qualify the product for sale in the United States. AG moved for summary judgment, arguing that it was the statutory employer of the plaintiffs and immune from suit on these claims. AG asserted that the plaintiffs' exclusive remedy was to pursue claims for workers compensation benefits for their work-related injuries. The district court agreed and granted summary judgment in favor of AG. The plaintiffs appeal.
Standard of Review
The standards for considering a summary judgment motion are well known to the parties and their counsel. To briefly summarize, in considering the motion the district court must resolve any inferences which may be reasonably drawn from the evidence in favor of the party against whom summary judgment is sought. When confronted with a claimed uncontroverted fact, an adverse party must come forward with evidence to establish that the claimed fact is disputed. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there remains no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. On appeal, we apply these same standards in a de novo review. See Osterhaus v. Toth, 291 Kan. 759, 768, 249 P.3d 888 (2011).
Uncontroverted Facts
The basic uncontroverted facts before the district court can be summarized as follows.
The German corporation Bayer CropScience AG is owned by Bayer AG and specializes in chemical crop protection, environmental science, and bioscience. AG does not own facilities in the United States.
Bayer CropScience LP is a Delaware limited partnership with its principal place of business in North Carolina. Its partners are all located outside of Kansas. LP operates a research facility in Stilwell, Kansas, known as “Bayer Research Park.” Employees at the Bayer Research Park conduct testing and research and development activities on herbicides, insecticides, and fungicides. Most of the research is directed towards meeting the requirements of regulatory agencies, such as the Environmental Protection Agency, which are prerequisites for the sale of these products in the United States. The plaintiffs worked at the Bayer Research Park in Stilwell during their tenures with Bayer Corporation and with LP.
All of the plaintiffs were originally employed by Bayer Corporation. In 2002, they became employees of LP. Robertson was hired by Bayer Corporation in 1973. Following the shift to LP, he worked for LP from 2002 to 2007. Bollin joined Bayer Corporation in 1997. He continued with LP from 2002 to 2009. Stoughton also began working at Bayer Corporation in 1997. He continued with LP and was still working there at the time of these summary judgment proceedings.
In January 2004, LP entered into a “Core R & D Services Agreement” with AG. Under the agreement, LP was to perform research and tests as an independent contractor of AG. The work included testing on the fungicide fluopyram. AG is the exclusive manufacturer of fluopyram. At the time of these proceedings, fluopyram was in the final stages of EPA registration.
The plaintiffs all worked with fluopyram, and they were each subsequently diagnosed with thyroid cancer. They brought this action in the district court against Bayer AG, Bayer Corporation, Bayer CropScience AG, Bayer CropScience LP, Bayer CropScience Holding, Inc., and several individuals. The plaintiffs later voluntarily dismissed all of the defendants except Bayer CropScience AG.
The Kansas Workers Compensation Act
The Kansas Legislature enacted the Kansas Workers Compensation Act to compensate employees injured in accidents arising out of and in the course of their employment. K.S.A. 44–501 et seq. In general, the Act must be “liberally construed for the purpose of bringing a worker under the Act whether or not desirable for the specific individual's circumstances.” Bright v. Cargill, Inc., 251 Kan. 387, 393, 837 P.2d 348 (1992).
The Act includes what is known as the exclusive-remedy rule. The rule states: “Except as provided in the workers compensation act, no employer, or other employee of such employer, shall be liable for any injury for which compensation is recoverable under the workers compensation act.” K.S.A. 44–501(b). Subsequent statutory amendments in 2011 do not apply here because the plaintiffs' claimed injuries predate the amendments. The law at the time of injury governs. See Matney v. Matney Chiropractic Clinic, 268 Kan. 336, 339, 995 P.2d 871 (2000).
The Workers Compensation Act contemplates two types of employers. The first type is the traditional employer-employee arrangement. The second type is the “statutory employer.” See K.S.A. 44–503. If an entity is found to be the direct or statutory employer of an injured worker, K.S.A. 44–501(b) applies and the worker's exclusive remedy is a claim for workers compensation benefits.
AG did not directly employ the plaintiffs. The issue raised in this appeal is whether AG was their statutory employer. In the context of the current dispute, K.S.A.
44–503(a) defines a statutory employer as a principal who “undertakes to execute any work which is a part of the principal's trade or business.” This statute further provides that any such statutory employer “shall be liable to pay to any worker employed in the execution of the work any compensation under the workers compensation act which the principal would have been liable to pay if that worker had been immediately employed by the principal.” K.S.A. 44–503(a).
If an entity is found to be a statutory employer, K.S.A. 44–503(a) obligates it to pay workers compensation benefits to an injured worker, and recovery under the workers compensation act is the only remedy available to the injured worker. See Robinett v. The Haskell Co., 270 Kan. 95, 98, 12 P.3d 411 (2000).
Our Supreme Court has stated that the purpose of K.S.A. 44–503(a) is “ ‘ “to prevent employers from evading liability under the act by the device of contracting with outsiders to do work which they have undertaken to do as part of their trade or business.” [Citations omitted.]’ “ Robinett, 270 Kan. at 98 (quoting Zehring v. Wickham, 232 Kan. 704, 707, 658 P.2d 1004 [1983] ).
There is an exception to the statutory employer provision in K.S.A. 44–503(a). The obligation under K.S.A. 44–503(a) to pay workers compensation benefits to an injured worker does not apply when, as provided in K.S.A. 44–503(d), “the accident occurred elsewhere than on, in or about the premises on which the principal has undertaken to execute the work or which are otherwise under the principal's control or management, or on, in or about the execution of such work under the principal's control or management.”
Plaintiffs' Arguments
In opposing AG's motion for summary judgment, the plaintiffs argue: (1) there is a genuine issue of material fact regarding whether the plaintiffs' testing work on fluopyram at the Stilwell facility was part of AG's “trade or business” so as to qualify AG as a statutory employer under K.S.A. 44–503(a); (2) AG did not control or manage the Stilwell facility and did not direct that the work be executed there and, therefore, the exception found in K.S.A. 44–503(d) applies; and (3) AG is beyond the jurisdictional reach of the Kansas Workers Compensation Act because it is a German corporation with no presence in Kansas.
Trade or Business
The appellants first argue summary judgment was improper because there is a factual dispute about whether LP's testing work for AG was part of AG's “trade or business” under K.S.A. 44–403(a). To the contrary, we find that the evidence is undisputed that the work performed by LP under its agreement with AG was work that was part of AG's trade or business and that AG meets the tests for being the plaintiffs' statutory employer.
In Hanna v. CRA, Inc., 196 Kan. 156, 159–60, 409 P.2d 786 (1966), our Supreme Court determined that the answers to the following two questions determine whether work performed by a contractor is part of the principal's trade or business:
“(1) [I]s the work being performed by the independent contractor and the injured employee necessarily inherent in and an integral part of the principal's trade or business? (2) is the work being performed by the independent contractor and the injured employee such as would ordinarily have been done by the employees of the principal?”
If either of these two questions is answered in the affirmative, the work being done is part of the principal's “trade or business,” and the injured employee's sole remedy against the principal is under the Workers Compensation Act. 196 Kan. at 159–60.
The first test—whether LP's work under the agreement was an integral part of AG's trade or business—looks at “what other similar businesses do.” Bright, 251 Kan. at 399. In its summary judgment motion AG directs us to the affidavit of Peter Coody, LP's vice president of environmental science. More specifically, AG asserted as uncontroverted the following:
“19. BCS AG is a company that specializes in chemical crop protection, environmental science, and bioscience.
“20. Companies that specialize in crop protection, environmental science, or bioscience often designate specific departments or have employees to perform the type of work that was done by plaintiffs at the Stilwell facility pursuant to the research and development agreement between BCS AG and BCS LP.”
The plaintiffs did not controvert AG's proposed uncontroverted fact No. 20 because they claimed it is too vague. They did not address the issue of Coody's affidavit in their brief opposing the summary judgment motion. But on appeal, the plaintiffs direct us to Woods v. Cessna Aircraft Co., 220 Kan. 479, 553 P.2d 900 (1976), to support the proposition that Coody's affidavit is vague and contains only conclusory allegations rather than facts and, therefore, should be ignored.
Woods was a wrongful death action brought on account of the death of Steven Woods who was killed when he was hit by an airplane on the jobsite owned by Cessna. Woods worked for Coonrod & Waltz Construction Company, an independent contractor engaged in constructing an aircraft hanger for the Wallace Division of Cessna, the manufacturer of Citation jet aircraft. Cessna contended that Woods' exclusive remedy was a claim for workers compensation benefits because Cessna was Woods' statutory employer under K.S.A. 44–503(a).
In support of its summary judgment motion, Cessna submitted affidavits from Cessna employees stating that Coonrod's work at Cessna was “necessarily inherent in and an integral part of the business of the Wallace Division of Cessna.” 220 Kan. at 486. The Kansas Supreme Court held that these affidavits were insufficient to support a finding necessary for the granting of summary judgment:
“These affidavits, while using the ‘magic’ words from Hanna v.. CRA, Inc., supra, are devoid of a factual basis to adequately explain the trade or business of the Wallace Division of Cessna and its relation to Coonrod. The deposition testimony suggests factual questions are unresolved and when construed against the movants requires that their motion for summary judgment be overruled.” Woods, 220 Kan. at 486.
The first test under Hanna is whether the work being performed by the contractor and the injured employee was necessarily inherent in and an integral part of the principal's trade or business. The affidavits in Woods simply said in conclusory fashion that it was. But the Supreme Court noted other facts in the record which, viewed in the light favoring Woods, raise a fact issue. The court observed that Cessna is in the business of manufacturing aircraft, and “[o]rdinary construction work, such as building a factory structure is considered outside the trade or business of a manufacturer or mercantile establishment.” 220 Kan. at 486. The court suggested that if Cessna is so big that it
“is accustomed to carrying on a more or less ongoing program of construction, replacement and maintenance, perhaps even having a construction division, or which can be shown to have handled its own construction in the past, a construction job delegated to a contractor may be brought within the Workmen's Compensation Act. [Citations omitted.]” 220 Kan. at 486.
In reversing the order for summary judgment, the court in Woods stated that “deposition testimony suggests factual questions are unresolved” on the question whether the construction work was an integral part of Cessna's trade or business. 220 Kan. at 486. We are aware of no such deposition testimony or other evidence in the record here that brings into question Coody's affidavit. In fact, the evidence supports the contrary.
Coody was deposed, and a portion of his deposition was attached to AG's reply brief filed in the district court. We find no sur-reply from the plaintiffs challenging Coody's testimony. He testified that he had “very, very frequent” communications with AG about its testing and research activities and that he took trips to AG's facility in Germany “several times a year.”
Coody testified that AG's contract with LP expanded AG's research capabilities. It provided “additional capacity for the—for the global community of development.” Coody testified that LP was engaged in studies on compounds covered by LP's contract with AG, which were simultaneously being studied in Germany by AG's researchers. This included simultaneous studies at Stilwell and in Germany of fluopyram, the product which the plaintiffs worked on and which they contend caused them to contract thyroid cancer. EPA approval was necessary for AG to market fluopyram in the United States. Coody testified that it is permissible to use foreign studies (such as those being conducted by AG in Germany) when seeking EPA approval.
Unlike in Woods where the court questioned the notion of Cessna building its own aircraft hangers as an inherent and an integral part of its business, we have here affirmative and unchallenged deposition testimony that AG conducted studies on fluopyram at the same time studies were being conducted on it by LP at its Stilwell facility. Such tests are clearly an integral part of AG's business of developing and marketing chemical compounds such as fluopyram. This certainly distinguishes the facts before us from those in Woods.
When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. O'Brien v. Leegin Creative Leather Products, Inc., 294 Kan. 318, 330, 277 P.3d 1062 (2012). This maxim is more easily said than carried out in some cases. A claimed uncontroverted fact that other businesses do their work just like the movant does cannot turn into a bizarre parlor game in which the nonmovant says, “Well, what about Acme Company, they don't do it like you do,” and the movant responds, “Sorry, that's not the company we were referring to.”
But the nonmovant is not without resources. The nonmovant cannot avoid summary judgment on the mere hope that something may later turn up later at trial. U.S.D. No. 232 v. CWD Investments, 288 Kan. 536, 559, 205 P.3d 1245 (2009). But the nonmovant may seek a continuance of the proceedings to conduct additional discovery in order to adequately defend against a pending summary judgment motion. K.S.A. 60–256(f); Missouri Bank & Trust Co. v. Gas–Mart Development Co., 35 Kan.App.2d 291, 296, 130 P.3d 128 (2006). That discovery could be in the form of an interrogatory to AG asking it to identify the similar company referred to in the affidavit and possible additional discovery, formal or otherwise, on the similarities of that company's practices. There is no indication that this was done in the present case.
We conclude that AG's proposed uncontroverted fact No. 20 does not suffer from the infirmities found in Woods. The statement is, in fact, uncontroverted. Together with the other uncontroverted facts, it establishes that the work at LP's facility in Stilwell was an integral part of AG's business, thereby satisfying the first test under Hanna as characterized in Bright. Because the two tests in Hanna are expressed in the alternative, we need not address the second test.
The Place of the Plaintiffs' Accident
The plaintiffs argue that AG is excluded as a statutory employer under K.S.A. 44–503(d), which limits the application of K.S.A. 44–503(a). K.S.A. 44–503(d) provides:
“This section shall not apply to any case where the accident occurred elsewhere than on, in or about the premises on which the principal has undertaken to execute work or which are otherwise under the principal's control or management, or on, in or about the execution of such work under the principal's control or management.”
The exception to the statutory employer rule found in K.S.A. 44–503(d) does not come into operation merely because the accident did not occur on the principal's premises. Here, the plaintiffs' exposure to fluopyram did not occur on AG's premises. But the operative fact is whether the accident occurred on the premises where AG undertook to execute work, whether or not it is AG's premises.
The agreement between AG and LP stated that testing work performed by LP for AG would be conducted as follows:
“Core R & D (and data and results generated in these studies) to be supplied by Researcher [LP] hereunder will be carried out under the responsibility of Researcher, in Researcher's premises and/or by any subcontractor of Researcher, present or future, who may be appointed pursuant to Clause 4.3 below.”
Here, the testing work was carried out by LP and not by a subcontractor. Thus, AG's testing work performed by LP, as opposed to testing work performed by a subcontractor, was required to be conducted on LP's premises.
LP is a Delaware company with its principal place of business in North Carolina. It owns and operates the Stilwell facility. The contract did not specifically identify the Stilwell facility by name as the place where LP would conduct research for AG, but the record does not disclose that LP had research facilities anywhere other than at Stilwell. Faced with the lack of evidence of any other facility where LP could have tested AG's fluopyram, we cannot conclude that it was left up to LP to decide where it would do its testing work.
In these summary judgment proceedings, the plaintiffs, the nonmoving parties, get the benefit of all reasonable inferences that can be derived from the evidence. O'Brien, 294 Kan. at 330. But we cannot infer from the evidence that LP had research facilities other than at Stilwell. We know from the uncontroverted facts that AG acquired Aventis CropScience USA LP in 2002, and the Aventis name was changed to Bayer CropScience LP. As a result of organizational restructuring, LP took over ownership and operation of the Stilwell facility which previously had been owned and operated by Bayer Corporation. But the plaintiffs do not come forward with any evidence from which we can infer that LP acquired or established other research facilities.
LP's headquarters are located in North Carolina. That fact certainly does not permit us to infer that LP had research facilities capable of doing the work on fluopyram in North Carolina or anywhere else other than Stilwell. It is common practice for business enterprises to maintain essential business activities, such as their product manufacturing operations, at locations other than at their headquarters. The location of the headquarters may be based on wholly different considerations, such as access to capital markets, to a pool of management expertise, to its customer base, or for local tax considerations.
It certainly would have been more specific for the parties to the contract to have identified the Stilwell facility by name. It is less specific to simply designate LP's premises. But under K.S.A. 44–501(g) we are to construe the statute in a way that brings the employer and employee under the provisions of the act. To construe K.S.A. 44–503(d) as requiring the principal to specifically name the particular premises is a more restrictive interpretation of the statute, contrary to the admonition in K.S.A. 44–501(g). AG specified that the LP's testing of fluopyram was to be done at LP's facility. The record indicates that LP has a testing facility at Stilwell and nowhere else. Construing the statute as required by K.S.A. 44–501(g), we conclude that the accident occurred on premises where AG undertook to execute the work.
The plaintiffs contend the phrase “ ‘premises on which the principal has undertaken to execute work’ “ contemplates a different scenario than the one presented here. They argue: “That subsection clearly envisions scenarios involving injured employees of a subcontractor pursuing claims against the original contractor.” They suggest the example of a contractor, hired to do work on the owner's property, who engages a subcontractor to perform some of the work. The plaintiffs contend that under this scenario:
“The original contractor/principal may not have control of the premises like the owner, and may not control the execution of the subcontractor's work, but if an injury occurs on the job site, the subcontractor's employee has sustained that injury on a premises upon which the original contractor (principal) had undertaken to execute work.”
This appears to be a scenario contemplated by the statute, but the language of the statute does not exclude other scenarios. See, for example, Durnil v. Grant, 187 Kan. 327, 356 P.2d 872 (1960), and Swift v. Kelso Feed Co., 161 Kan. 383, 168 P.2d 512 (1946). In those cases, the principals' businesses included the delivery of products to their customers. In each case, the principal engaged an independent contractor to make the principal's deliveries, and the contractor's employee was injured en route to making the delivery (in Durnil ) or when the employee reached the customer's facility (in Swift ). Our Supreme Court found in those cases that the exception found in K.S.A. 44–503(d) to the statutory employer rule did not apply because where the accidents occurred were where the principals had undertaken to execute the work.
AG is engaged in the development, testing, and marketing of crop protection products for sale in the United States and elsewhere around the world. LP was engaged by AG to test its crop protection products, including fluopyram, in order to qualify them for sale in the United States. The plaintiffs were employees of LP engaged in testing of fluopyram in order to qualify it for sale in the United States. In Durnil and Swift, the court concluded that the workers injured while making deliveries were statutory employees of the principals because the distribution of the principals' products was necessarily inherent in and an integral part of their businesses, just as testing was a necessary and integral part of AG's business of developing fluopyram and marketing it in the United States and elsewhere. The plaintiffs doing this testing work fit the model of a statutory employee as described in Durnil and Swift.
The plaintiffs rely on Lehman v. Grace Oil Co., 151 Kan. 145, 98 P.2d 430 (1940), for support. Lehman predates Durnil and Swift. Lehman does not apply. It resolved the issue of whether the principal was a statutory employer under K.S.A. 44–503(a). It did not conduct an analysis of the facts and circumstances necessary for the K.S.A. 44–503(d) exception to apply.
In Lehman, Grace Oil Company wanted to move a house from a nearby town onto the property it leased for oil and gas development. Grace was in the business of obtaining leases, drilling wells, and producing oil. It hired Ashcraft to move the building. Moving buildings required special skill and equipment that Ashcraft had and Grace did not. Ashcraft's employee, Lehman, was injured during the move.
Lehman contended that Grace was his statutory employer because the work of moving the house to the lease “facilitated or advanced the interests of the trade or business in which the oil company was engaged.” 151 Kan. at 148. The court rejected this notion and concluded that Grace was not Lehman's statutory employer as defined by K.S.A. 44–503(a) because Grace's trade or business did not include moving houses. The court touched on K.S.A. 44–503(d) only in passing, and concluded that “since under the facts the oil company is not liable under subdivision (a), manifestly it could not be liable under subdivision (d), which is in the nature of an exception to its liability under subdivision (a).” 151 Kan. at 155.
Lehman does not undermine the analysis in the court's later decisions in Durnil and Swift. Relying on those later cases, we conclude that K.S.A. 44–503(d) does not take AG out of the category of the plaintiffs' statutory employer.
Personal Jurisdiction
Finally, the plaintiffs contend that K.S.A. 44–503 does not apply here because AG is beyond the jurisdictional reach of the Kansas Workers Compensation Act. They argue that AG is a Germany company that is not registered to do business in Kansas, owns no facilities in Kansas, and has no presence in the state.
The Kansas Workers Compensation Act sets its own procedural rules regarding jurisdiction. Our Supreme Court has previously held: “[T]he Workmens' Compensation Act is complete and exclusive within itself in establishing procedures covering every phase of the right to compensation, and such procedures are not subject to supplementation by rules borrowed from the Code of Civil Procedure.” Crow v. City of Wichita, 222 Kan. 322, 332, 566 P.2d 1 (1977); see Abbey v. Cleveland Inspection Services, Inc., 30 Kan.App.2d 114, 41 P.3d 297 (2002).
But still, Kansas workers compensation proceedings are subject to the constitutional requirement that the parties be afforded due process of law, including the right not to be hailed into an administrative proceeding in a state in which a party has had no contact whatsoever, as the plaintiffs attribute to AG.
The appellants make their argument based on our decision in Abbey. We do not find Abbey to be persuasive in the present context. In Abbey, the State Insurance Fund of Oklahoma, the protagonist in the dispute, was not in a position comparable to AG in the case now before us.
Abbey was a craft inspector who lived in Hutchinson. He was hired by Cleveland, an Oklahoma company, to do work in New Mexico. The contract of employment between Abbey and Cleveland was entered into in Kansas during the course of a telephone call Cleveland made to Abbey at his home in Hutchinson. Cleveland began paying Abbey his wages from the time he left Hutchinson for New Mexico. While working in New Mexico, Abbey suffered a job-related injury.
Abbey filed a workers compensation claim in Kansas against Cleveland, his employer, and against the State Insurance Fund of Oklahoma, Cleveland's insurer. Cleveland did not dispute that it was subject to workers compensation proceedings in Kansas where its employee lived and where the contract of employment was entered into. But the Fund contended that it was not subject to these proceedings in Kansas.
The Fund was organized to provide workers compensation insurance for Oklahoma employers. The Fund provided coverage to Cleveland's employees under Oklahoma's workers compensation act. The Fund's policy contained a “ ‘submission to jurisdiction’ “ clause that applied only to Oklahoma. 30 Kan.App.2d at 115. This clause apparently was comparable to the policy provision in Kansas described in K.S.A. 44–559:
“Such policy shall contain an agreement that the insurer accepts all the provisions of this act, that the same may be enforced by any person entitled to any rights under this act as well as by the employer, that the insurer shall be a party to all agreements or proceedings under this act, and his appearance may be entered therein and jurisdiction over his person may be obtained as in this act provided, and such covenants shall be enforceable notwithstanding any default of the employer.”
Believing that Abbey was injured in Oklahoma, the Fund initially paid benefits to Abbey. It stopped after it learned that Abbey's injury occurred in New Mexico and that he was a resident of Kansas. The Fund objected to being joined in Abbey's Kansas workers compensation proceedings, and the Board and this court found that the Fund was not subject to the jurisdiction of the workers compensation proceedings in Kansas.
The Fund was not Abbey's direct or statutory employer. The Fund was improperly joined in the Kansas proceedings because it insured Abbey's employer under a policy that specifically limited its exposure to Oklahoma workers compensation proceedings. Abbey was not an Oklahoma resident, his accident did not occur in Oklahoma, and his workers compensation claim was not brought in Oklahoma.
Unlike the Fund in Abbey, AG is the employer, albeit a statutory employer, of the plaintiffs who worked in Kansas and claim to have sustained work-related injuries while conducting tests of AG's products in Kansas. As a statutory employer AG would be subject to the jurisdiction of our workers compensation commission in proceedings on the plaintiffs' claims. Accordingly, the plaintiffs' jurisdictional argument fails.
Conclusion
In summary, AG contracted with LP to do testing work similar to the type of testing work that was conducted by AG employees in Germany. The products tested by LP were the same products being tested by AG employees in Germany. The tests undertaken by LP were necessary to enable AG to obtain EPA approval, a prerequisite to marketing fluopyram in the United States. The results of tests conducted by AG employees in Germany could be used to obtain EPA approval, but contracting with LP to do this testing enabled AG to expand its testing capacity. The contract between AG and LP expanded AG's capability to do the same type of work that its German employees did which was an integral and essential part of AG's business of developing and marketing fluopyram. AG qualifies as the plaintiffs' statutory employer as defined by K.S.A. 44–503(a).
The contract specified that testing work performed by LP was to be done on its premises. There is no indication that there was any place other than LP's Stilwell facility where LP engaged in this type of testing. Thus, in specifying LP's premises, AG undertook to execute the work at Stilwell where the plaintiffs worked and were injured. Thus, K.S.A. 44–503(d) does not apply to exclude AG from being the plaintiffs' statutory employer.
K.S.A. 44–505(a) provides that subject to K.S A. 44–506 (which does not apply here), “the workers compensation act shall apply to all employments wherein employers employ employees within this state .” The statute then enumerates a series of exceptions, none of which applies to AG. Thus, the Kansas Workers Compensation Board may exercise jurisdiction over AG with respect to claims brought by the plaintiffs for their job-related injuries. Regardless of whether AG is liable to pay compensation for those injuries, as the plaintiffs' statutory employer AG is immune from an action in tort for those injuries, as explained in Robinette v. The Haskell Co., 270 Kan. 95, 12 P.3d 411 (2000).
Based upon this analysis, we conclude that there remains no genuine issue of material fact, and AG is entitled to judgment as a matter of law on the plaintiffs' claims because AG is the plaintiffs' statutory employer and not subject to this suit at common law.
Affirmed.